Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23399/94

by H. W. K.

against Switzerland

The European Commission of Human Rights (Second Chamber) sitting

in private on 31 August 1994, the following members being present:

MM. H. DANELIUS, Acting President

S. TRECHSEL

G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

MM. F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

Mr. K. ROGGE, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 26 January 1994

by H. W. K. against Switzerland and registered on 4 February 1994 under

file No. 23399/94;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as submitted by the applicant, may be

summarised as follows.

The applicant, a Swiss citizen born in 1931, is a lawyer residing

at Zumikon in Switzerland. Before the Commission he is represented by

Messrs. B. Badertscher and Th. Poledna, lawyers practising in Zurich.

Particular circumstances of the case

In 1984 the applicant's taxes due for the tax period 1981/1982

were assessed at 1,030,000 SFr. In 1987, following the denunciation

by a former accountant, investigations were instituted against the

applicant on suspicion that he had incorrectly declared taxes. On

10 May 1989 the Tax Office (Steueramt) of the Canton of Zurich imposed

further taxes of 12,259 SFr and a fine of 6,129.50 SFr for negligent

tax evasion (fahrlässige Steuerhinterziehung).

The applicant's appeal (Beschwerde) against this decision was

heard on 22 June 1992 by the Appeals Commission for Federal Taxes

(Bundessteuer-Rekurskommission, see below, Relevant domestic law),

consisting of the President, four members, a substitute and the

secretary. The applicant was present at the hearing. The Appeals

Commission dismissed the appeal on the same day. In its decision,

numbering 25 pages, it found inter alia that it was an independent

judicial body within the meaning of Article 6 para. 1 of the

Convention.

The applicant's administrative law appeal (Verwaltungsgerichts-

beschwerde) was dismissed by the Federal Court (Bundesgericht) on

7 June 1993, the decision being served on the applicant on

27 July 1993. In its decision, the Court found inter alia that the

Appeals Commission for Federal Taxes constituted an independent tax

court within the meaning of Article 6 of the Convention, as the

supervision by the Finance Directorate and the Council of State of the

Canton of Zurich did not concern its judicial activities. Indeed, the

Appeals Commission dealt with issues of Federal, and not Cantonal,

taxes. As such, it was able to examine all procedural aspects as well

as the fine.

As a result, and with reference to Section 105 para. 2 of the

Federal Judiciary Act (Organisationsgesetz, see below, Relevant

domestic law) the Federal Court found that it was not free to examine

the facts as established by the Appeals Commission. The Court further

considered that the Appeals Commission had not incorrectly established

the facts or assumed the applicant's negligence (Fahrlässigkeit).

Relevant domestic law

I.

According to Section 105 para. 1 of the Federal Judiciary Act

(Organisationsgesetz) the Federal Court (Bundesgericht), when seised

with an administrative law appeal (Verwaltungsgerichtsbeschwerde), is

free to examine the facts of a case. According to Section 105 para.

2, if a judicial body previously examined the case, the Federal Court

is bound by that body's determination of the facts except if it is

incorrect, incomplete or in breach of essential rules of procedure.

II.

Section 106 of the Federal Council Decree on the imposition of

direct Federal taxes (Bundesratsbeschluss über die Erhebung einer

direkten Bundessteuer) states that an appeal can be filed against a

decision of the tax authority determining the taxes to the Cantonal

Appeals Commission (kantonale Rekurskommission) which functions as an

Appeals Commission for Federal Taxes (Bundessteuer-Rekurskommission).

III.

According to Section 6 of the Ordinance of the Canton of Zurich

on the implementation of direct Federal taxes (Verordnung über die

Durchführung der direkten Bundessteuer), the Appeals Commission for

Federal Taxes (Bundessteuer-Rekurskommission) consists of five members

(para. 1). The Council of State (Regierungsrat) elects its president,

the members, and their substitutes, for a period of four years

(para. 2). The Finance Directorate (Finanzdirektion) organises the

Secretariat (para. 3).

According to Section 27 of the Ordinance, the Finance Directorate

also determines the remuneration of the Appeals Commission.

IV.

Section 69 of the Tax Act (Steuergesetz) of the Canton of Zurich

states that the Appeals Commissions for Federal Taxes are under the

supervision (unterstehen der Aufsicht) of the Finance Directorate.

According to Section 70 of the Tax Act, in cases of a breach of

duty, of a refusal of justice, or of delays, an appeal may be filed

against the Appeals Commission for Federal Taxes to the Finance

Directorate; a further appeal may be lodged with the Council of State.

COMPLAINTS

1. The applicant complains that his fine was not decided by an

independent tribunal within the meaning of Article 6 para. 1 of the

Convention. The Tax Office was part of the administration of the

Canton of Zurich, and the Federal Court, acting upon an administrative

law appeal, relied on the establishment of the facts by the Appeals

Commission for Federal Taxes according to Section 105 para. 2 of the

Federal Judiciary Act.

The Appeals Commission for Federal Taxes did not constitute an

independent tribunal within the meaning of Article 6 para. 1 as it was

instituted and supervised by the Cantonal Government. The latter also

appointed the Secretariat of the Appeals Commission and determined

members' salaries. If the various connections between the Appeals

Commission and the Cantonal Government were viewed together, the

Appeals Commission appeared as part of the cantonal administration.

2. The applicant further complains under Article 6 para. 2 of the

Convention that he was convicted of negligence (Fahrlässigkeit)

although he could not be reproached for the manner in which he ran and

supervised his accounts. He submits that he was entitled to limit

himself to a control of what appeared plausible (Plausibilitätskontrol-

le). The accounting system employed by the applicant had otherwise

never given rise to remarks by the tax authorities.

THE LAW

1. The applicant complains of his conviction on account of tax

evasion leading to the imposition of a fine. He submits in particular

that he was convicted of negligence although he could not be reproached

for the manner in which he ran his accounts. He also raises other

complaints under Article 6 (Art. 6) of the Convention.

The Commission recalls that under Article 19 (Art. 19) of the

Convention its only task is to ensure the observance of the obligations

undertaken by the Parties to the Convention. In particular, it is not

competent to deal with an application alleging that errors of law or

fact have been committed by domestic courts, except where it considers

that such errors might have involved a possible violation of any of the

rights and freedoms set out in the Convention. The Commission refers

on this point to its established case-law (see e.g. No. 458/59,

Dec. 29.3.60, Yearbook 3 p. 222, 236; No. 5258/71, Dec. 8.2.73,

Collection 43 pp. 71, 77; No. 7987/77, Dec. 13.12.79, D.R. 18

pp. 31, 45). It follows that the Commission cannot examine the

applicant's conviction as such.

2. It is true that the applicant complains under Article 6

(Art. 6) of the Convention that his fine for tax evasion was not

decided by an "independent ... tribunal" within the meaning of this

provision. He submits in particular that the Appeals Commission for

Federal Taxes appears as part of the cantonal administration.

In determining whether this body can be considered to be

"independent", notably of the executive and of the parties to the case,

the Commission has had regard to the manner of appointment of its

members and the duration of their term of office, the existence of

guarantees against outside pressures and the question whether the body

presents an appearance of independence (cf. Eur. Court H.R., Campbell

and Fell judgment of 28 June 1984, Series A no. 80, p. 39 et seq.,

para. 78).

The Commission notes, first, that members of the Appeals

Commission for Federal Taxes are appointed by the Council of State of

the Canton of Zurich, and its Secretariat is organised by the Finance

Directorate (see Section 6 of the Ordinance of the Canton of Zurich on

the implementation of direct Federal taxes). However, according to the

Convention organs' case-law, this manner of appointment cannot in

itself call in question the independence of the tribunal (loc. cit.,

p. 40, para. 79).

Moreover, the duration of office of the members of the Appeals

Commission, lasting four years, is not so short as to raise an issue

as to their independence. The absence in the applicable legislation

of a formal recognition of the irremovability from office again cannot

in itself imply lack of independence (loc. cit. p. 40, para. 80).

There remains the question of the Appeals Commission's

independence in view of the supervisory functions of the Finance

Directorate under Section 69 of the Tax Act of the Canton of Zurich.

In the Commission's opinion, it does not transpire from this provision

that the members of the Appeals Commission are in any way subject to

instructions by the Finance Directorate regarding their judiciary

functions. A confirmation herefor can be seen in Section 70 of the Tax

Act according to which the Finance Directorate and the Council of State

will solely supervise, upon appeal, the Appeals Commission in respect

of any breach of duty or refusal of justice or delay. In any event,

the Finance Directorate is a cantonal body, whereas the Appeals

Commission is called upon to examine matters under Federal tax law.

As a result, the Commission is satisfied that the Appeals

Commission was an "independent tribunal" within the meaning of Article

6 para. 1 (Art. 6-1) of the Convention.

This part of the application is therefore manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

3. With regard to his conviction of negligence the applicant invokes

the presumption of innocence guaranteed by Article 6 para. 2 (Art. 6-2)

of the Convention. The Commission finds no issue under this provision.

The applicant may be understood as complaining under Article 6 para.

1 (Art. 6-1) of the Convention of an incorrect assessment of evidence

in that he could not be reproached for the manner in which he ran his

accounts.

The Commission recalls that the admissibility of evidence is

primarily a matter for regulation by national law and, as a rule, it

is for the national courts to assess the evidence before them. The

Convention organs' task is to ascertain whether the proceedings

considered as a whole, including the way in which evidence was taken,

were fair (see Eur. Court H.R., Asch judgment of 26 April 1991,

Series A no. 203, p. 10, para. 26).

In the present case there is no indication that the applicant,

who is a lawyer and was represented by a lawyer throughout the

proceedings, could not put forward the evidence which he wished to

produce, or that the proceedings were otherwise unfairly conducted.

The remainder of the application is therefore also manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Second Chamber Acting President of the

Second Chamber

(K. ROGGE) (H. DANELIUS)

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H.W.K. v. SWITZERLAND

H.W.K. v. SWITZERLAND

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